GENG QUAN GU VS UNITEX INTERNATIONAL INC ET AL

Tentative Rulings

Case Number: ****8300    Hearing Date: April 26, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

   Plaintiff, Geng Quan Gu (“Plaintiff”) filed this action against Defendants, Unitex International, Inc., et al. for damages Plaintiff suffered while operating a commercial truck carrying a freight container. Plaintiff alleges the freight container was loaded and by the defendants, but it was improperly balanced and not loaded properly, such that the imbalanced load caused the truck to flip on its side. Plaintiff’s operative First Amended Complaint (“FAC”) was filed on 5/4/18. On 2/24/20, Plaintiff filed an Amendment to Complaint naming TraPac, LLC as Doe 5.

   Defendant, TraPac, LLC (“Defendant”) now moves to dismiss Plaintiff’s FAC pursuant to CCP ; 583.210(a).

2. Motion to Dismiss

1. Parties’ Positions

Defendant argues Plaintiff commenced this action over three years ago on 12/29/17 but did not serve Defendant with the amended summons and complaint until 1/13/21. Defendant contends CCP ; 583.250 requires the action be dismissed because Plaintiff failed to serve the summons and complaint within three years of commencing the action.

In opposition, Plaintiff argues the COVID-19 pandemic made service on Defendant impossible, impracticable, or futile, which tolled the period of time under CCP ; 583.210(a), so that service of the summons and complaint on Defendant was proper. Plaintiff asserts service was made by a Los Angeles, CA based process server upon a registered agent in Sacramento, CA, and that prior to the service, both Los Angeles and Sacramento were under various stay at home orders. Further, Plaintiff argues Judicial Council’s Emergency Rule 9 tolled the statute of limitations for civil actions for 178 days and tolled the running of CCP ; 583.210(a).

In reply, Defendant contends Plaintiff fails to show Plaintiff ever attempted service on Defendant, and service on Defendant was never impossible or impracticable during the COVID-19 pandemic. In addition, Defendant argues none of the Emergency Rules extended CCP ; 583.210’s deadline, and Plaintiff was not prevented from serving the summons and complaint by any closures.

1. Request for Judicial Notice

Defendant with its moving papers requests the court take judicial notice of (1) Plaintiff Geng Quan Gu’s Complaint for General Negligence filed on December 29, 2017 (Exh. 1); (2) Plaintiff Geng Quan Gu’s First Amended Complaint for General Negligence filed on May 4, 2018 (Exh. 2); (3) Plaintiff’s “Amendment to Complaint (Fictitious/Incorrect Name)” identifying TraPac as “DOE 5,” filed on February 24, 2020 (Exh. 3); and (4) Plaintiff’s January 13, 2021 Proof of Service for service of the First Amended Summons, First Amended Complaint and Amendment to Complaint on TraPac, filed on March 2, 2021 (Exh. 4.)

The requests are unopposed and granted. (Evid Code ; 452(d).)

Defendant, in its reply, filed a second request seeking judicial notice of additional exhibits. However, the court will not consider this evidence filed for the first time with the reply papers. (See Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1308.)

1. Analysis

CCP ; 583.210 provides:

(a) The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.

(b) Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.

Further, CCP ; 583.250 states:

(a) If service is not made in an action within the time prescribed in this article:

(1) The action shall not be further prosecuted, and no further proceedings shall be held in the action.

(2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.

(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.

CCP ; 583.240 states:

In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed:

(a) The defendant was not amenable to the process of the court.

(b) The prosecution of the action or proceedings in the action was stayed and the stay affected service.

(c) The validity of service was the subject of litigation by the parties.

(d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision.

“Once the statutory period for either service of process or commencement of trial has run, the action cannot be further prosecuted and must be dismissed. (; 583.250; ; 583.360.) The periods for service run from the “commencement of the action.” This means the time the complaint is filed. (CCP ;583.210(a); Bishop v. Silva (1991) 234 Cal.App.3d 1317, 1327, 285.) An action is “commenced” when the original complaint is filed against the defendants named therein. Therefore, the 3-year period for service and filing proof of service runs from that date, rather than from the date of any later amended complaint (even if the amended complaint is the only one served). (CCP ;411.10; Perati v. Atkinson (1964) 230 Cal.App.2d 251, 253-254.)

The above rule applies even where the defendant seeking dismissal was served as one of the “Doe” defendants named in the original complaint, which was later amended to show his true name. Because “Doe” was named in the original complaint, the 3-year period for service and filing proof of service of summons runs from the date it was filed. (Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 484-485. )

A plaintiff can escape this harsh consequence only by proving that grounds exist to toll the statutory period. [Citation.] Such proof is strictly limited: The requirements of both dismissal statutes ‘are not subject to extension, excuse, or exception except as expressly provided by statute.’ ” (Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 498.)

Accordingly, once the statutory periods have expired, the burden is on plaintiff to show some excuse for the delay in service. (Putnam v. Clague (1992) 3 Cal.App.4th 542, 549.) The Court strictly construes “ ‘[t]he excuse of impossibility, impracticability, or futility ... in light of the need to give a defendant adequate notice of the action so that the defendant can take necessary steps to preserve evidence.’ ” (Dale, supra, 207 Cal.App.3d at 502.)

Here, Defendant TraPac’s evidence establishes that Plaintiff failed to serve Defendant with the summons and complaint within three years of filing the complaint on 12/29/17, as the proof of service shows Defendant was not served until 1/13/21.

The burden is on Plaintiff to show an excuse for the delay in service. (Dale, supra, 207 Cal.App.3d at 502.) Plaintiff, in opposition, argues the COVID-19 pandemic made service on Defendant impossible, impracticable, or futile, which tolled the period of time under CCP ; 583.210(a). Additionally, Plaintiff argues Judicial Council’s emergency Rule extended the deadline for Plaintiff to serve Defendant under CCP ; 583.210.

First, while Plaintiff argues the COVID-19 pandemic made service on Defendant impossible, impracticable, or futile, Plaintiff fails to articulate how the pandemic made service on Defendant impossible, impracticable, or futile. Plaintiff merely asserts lockdowns and stay at home orders required closures of non-essential business, but Plaintiff does not state whether any such orders applied to Defendant, or how the orders specifically affected service on Defendant. Moreover, as Defendant argues in reply, Plaintiff fails to explain why Plaintiff could not effect service on Defendant throughout 2020.

Second, Emergency Rule 9(a), as amended on or about 5/29/20, states: “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.” The Advisory Committee Comment for Emergency Rule 9 provides: “Emergency rule 9 is intended to apply broadly to toll any statute of limitations on the filing of a pleading in court asserting a civil cause of action.”

CCP ; 583.210 does not concern a statute of limitations for a plaintiff to bring an action; rather, CCP ; 583.210 explicitly concerns the time for serving a defendant after filing an action. None of the Emergency Rules contain any language suggesting the intent was to toll the time for serving the summons and complaint as required by CCP ; 583.210 after an action was filed. Thus, Plaintiff fails to show the time to serve Defendant was tolled by Emergency Rule 9. (Tzolov v. Int'l Jet Leasing, Inc. (1989) 214 Cal. App. 3d 325, 327 [“ ‘the purpose of the statute of limitations is distinct and apart from that of the time limitations contained in [the predecessor to ; 583.210]. The statute of limitations is concerned only with the timeliness of instituting an action, while [the predecessor section] is concerned with the speedy prosecution of an action after such action has already been commenced.’ ”].)

Based on the foregoing, Defendant’s motion to dismiss is granted.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 26^th day of April, 2021